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Oliver v. Utah Labor Commission

Supreme Court of Utah

July 25, 2017

Mark L. Oliver, Respondent,
v.
Utah Labor Commission, Workers Compensation Fund, and D. Tyree Bulloch Construction, Petitioners.

         On Certiorari to the Utah Court of Appeals

          Floyd W. Holm, St. George, for petitioners Workers Compensation Fund and D. Tyree Bulloch Construction.

          Jaceson R. Maughan, Salt Lake City, for petitioner Utah Labor Commission

         Virginius Dabney, St. George, Stony Olsen, Moroni, for respondent

          Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Judge Pettit joined.

          Having recused himself, JUSTICE PEARCE did not participate herein; DISTRICT COURT JUDGE KARA PETTIT sat.

          OPINION

          HIMONAS, JUSTICE.

         INTRODUCTION

         ¶ 1 After injuring himself on a construction site, Mark Oliver applied for permanent total disability benefits under Utah Code section 34A-2-413, the permanent total disability portion of the Workers' Compensation Act. The Labor Commission denied Mr. Oliver's application based on his failure to prove two elements of a permanent total disability claim: (1) that he was limited in his ability to do basic work activities, Utah Code § 34A-2-413(1)(c)(ii), and (2) that he was not prevented from performing the essential functions of work for which he had been qualified until the time of his accident, id. § 34A-2-413(1)(c)(iii). Mr. Oliver appealed, and the Utah Court of Appeals reversed the Labor Commission's order.

         ¶ 2 We now hold that the Labor Commission properly denied Mr. Oliver's application and accordingly reverse the court of appeals. For the reasons explained in this opinion, the court of appeals' interpretation of Utah Code section 34A-2-413(1)(c)(ii)-the "basic work activities" provision of the permanent total disability statute-is contrary to the plain meaning of the statute and our decision in Provo City v. Utah Labor Commission, 2015 UT 32, 345 P.3d 1242.[1] On the correct interpretation of this provision, the Labor Commission's determination that Mr. Oliver failed to prove this element is supported by substantial evidence.

         ¶ 3 We also hold that the court of appeals misallocated the burden of proof and improperly considered information not contained in the administrative record in reversing the Labor Commission's determination that Mr. Oliver had failed to prove the "essential functions" element of a permanent total disability claim.[2]

         BACKGROUND

         ¶ 4 On March 27, 2000, Mark Oliver was working for D. Tyree Bulloch Construction (Bulloch Construction) when he fell from a suspended porch, injuring himself. For several years following his injury, Mr. Oliver worked a variety of jobs, including as a construction worker, landscape designer, and, most recently, as a delivery truck driver. He stopped working altogether in 2007.

         ¶ 5 On June 20, 2012, Mr. Oliver applied to the Utah Labor Commission for permanent total disability benefits under Utah Code section 34A-2-413, the permanent total disability statute. The parties submitted conflicting medical evidence and vocational evidence. One medical expert, Dr. Mark Passey, opined that Mr. Oliver was able to "perform just about any activities he wishes to do, " while another, Dr. Jacob Corry, believed that Mr. Oliver would suffer from constant attention difficulties due to his pain and a severe restriction in his ability to walk, balance, and crouch.

         ¶ 6 The parties also submitted conflicting vocational evidence. Relying on Dr. Corry's medical opinion, Mr. Oliver's vocational expert opined that Mr. Oliver likely could not perform basic work activities because he was unable to concentrate due to pain. By contrast, Bulloch Construction's vocational expert testified that Mr. Oliver was able to perform medium-duty work, and that he was not limited in his ability to do basic work activities. Bulloch Construction's expert acknowledged that, if Dr. Corry's medical opinion was correct, Mr. Oliver likely could not perform basic work activities.

         ¶ 7 Because of the differences in medical opinion, an administrative law judge (ALJ) appointed an independent medical panel to conduct an impartial review of the medical evidence. This panel concluded that Mr. Oliver could perform medium-duty work as long as he was able to be absent from work occasionally, elevate his legs for five to ten minutes out of every hour, and take occasional unscheduled breaks during the day. The panel also opined that, as a general matter, Mr. Oliver was able to perform basic work activities; among other things, it found that he could "concentrate, . . . commute, communicate, work, remain at work for the scheduled time, and cope with . . . the work setting."

         ¶ 8 After reviewing this evidence, the ALJ found that Mr. Oliver was permanently totally disabled and tentatively awarded him permanent total disability benefits. Bulloch Construction then appealed this award to the Labor Commission, which reversed it on two grounds.

         ¶ 9 First, the Labor Commission concluded that Mr. Oliver had not proven that he was limited in his ability to perform basic work activities. Giving great weight to the medical panel report, the Labor Commission found that Mr. Oliver was able to work, remain at work, and cope with changes at work. It acknowledged the medical panel's conclusion that Mr. Oliver may require unscheduled breaks and may be absent from work occasionally, but found that these "indefinite circumstances do not present a reasonable limitation on Mr. Oliver's ability to do basic work activities in light of the panel's description that he may work, remain at work, and cope with changes at work." Similarly, the Labor Commission found that Mr. Oliver's need to "elevate his legs for 5-10 minutes for every hour he is required to stand is not enough to show [that he] is reasonably limited in his flexibility or endurance . . . ."

         ¶ 10 The Labor Commission also disagreed with the ALJ's conclusion that Mr. Oliver could not perform the essential functions of his previous work as a delivery truck driver. The Labor Commission found that Mr. Oliver had been qualified to be a delivery truck driver at the time of the accident. Based on testimony about his medical and vocational ability, it also found that he had failed to prove that he was unable to perform the essential functions of that job. Accordingly, the Labor Commission concluded that Mr. Oliver had not established that he was entitled to permanent total disability benefits.

         ¶ 11 After filing an unsuccessful motion for reconsideration, Mr. Oliver appealed the Labor Commission's denial of benefits to the Utah Court of Appeals. The court of appeals reversed the Labor Commission's order on two points. First, it held that the Labor Commission misinterpreted the basic work activities provision of the permanent total disability statute. Second, after consulting the Bureau of Labor Statistics' Occupational Outlook Handbook-a handbook that the parties agree was not in the record-it concluded that the Labor Commission's determination that Mr. Oliver had been qualified to work as a delivery truck driver was not supported by substantial evidence. The court of appeals accordingly reinstated the ALJ's award of permanent total disability benefits.

         ¶ 12 Bulloch Construction subsequently petitioned this court for certiorari, which we granted. We reverse the court of appeals and uphold the Labor Commission's decision.

         STANDARDS OF REVIEW

         ¶ 13 "On certiorari, we give the court of appeals' decision no deference and review its decision under a correctness standard." Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3 (citation omitted). We also review interpretations of a statute for correctness. Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 11, 164 P.3d 384. And when the Labor Commission's factual determinations are properly before us on review, we review them under the substantial evidence standard of review, examining the whole record to determine whether "a reasonable mind might accept as adequate the evidence supporting the decision." Id. ¶ 35 (internal quotation marks omitted).

         ANALYSIS

         ¶ 14 We set ourselves three tasks in this part of the opinion. First, we provide an overview of the elements of a permanent disability claim and explain the work each element does and how the elements relate to each other. We then hold that the court of appeals erred in its interpretation of the basic work activities provision, explain why we reject the concurring opinion's interpretation of this provision, and uphold the Labor Commission's determination that Mr. Oliver did not prove that he was limited in his ability to do basic work activities. Third and finally, we explain the errors in the court of appeals' analysis of whether Mr. Oliver established that his impairments prevented him from performing the "essential functions" of the work for which he had been qualified until his accident.

         I. THE ELEMENTS OF A PERMANENT TOTAL DISABILITY CLAIM

         ¶ 15 Under Utah Code section 34A-2-413, an employee is required to prove six elements to establish a claim for permanent total disability benefits: (1) "the employee sustained a significant impairment" as a result of the work-related injury, (2) "the employee is not gainfully employed, " (3) "the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities, " (4) the impairment or impairments "prevent the employee from performing the essential functions of the work for which the employee has been qualified" until the time of the accident, (5) "the employee cannot perform other work reasonably available, " and (6) "the industrial accident or occupational disease is the direct cause of the employee's permanent total disability." Utah Code § 34A-2-413(1)(b)-(c); Provo City v. Utah Labor Comm'n, 2015 UT 32, ¶ 6, 345 P.3d 1242. Utah Code section 34A-2-413(1)(b)-(c) lays out the factual elements of a permanent total disability claim, and the employee bears the burden of proving each of these factual elements by a preponderance of the evidence. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 33, 164 P.3d 384.

         ¶ 16 Other than the significant impairment and causation provisions, the elements of a permanent total disability claim are all specific inquiries into an employee's ability to work. The core question at which these elements are directed is whether, notwithstanding his or her impairments, the employee can participate in the workforce. Thus, the gainful employment element asks if the employee is currently in the workforce. Utah Code § 34A-2-413(1)(c)(i). The essential functions element asks if the employee can still do the work he or she has been qualified for. Id. § 34A-2-413(1)(c)(iii). The other work element asks if, given his or her limitations, there is any other reasonably available work for the employee to do. Id. § 34A-2-413(1)(c)(iv). And, as we explain in greater detail below, the basic work activities element asks whether, irrespective of specific employment prospects, the employee retains the core functionality necessary to meaningfully participate in the workforce. Id. § 34A-2-413(1)(c)(ii).

         ¶ 17 We also note that, in contrast to the federal Social Security Act, the permanent total disability statute does not require the Labor Commission to analyze these six elements in any particular sequence.[3]Instead, if the Labor Commission finds that an employee has failed to prove any one of these elements by a preponderance of the evidence, it must deny permanent total disability benefits; otherwise, it must award them.

         II. THE BASIC WORK ACTIVITIES PROVISION

         ¶ 18 This case calls upon us to interpret Utah Code section 34A-2-413(1)(c)(ii), which requires employees seeking permanent total disability benefits to prove that they have "an impairment or combination of impairments that limit [their] ability to do basic work activities." At issue in this appeal is the meaning of the word "limit."

         ¶ 19 Our courts use a "plain meaning" approach to statutory interpretation. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3. Under this approach, we need not look beyond the statute's text to secondary considerations-such as legislative history or the canon that we interpret statutes to avoid absurd results-unless there is ambiguity in the statute. See Ramsay v. Kane Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 7, 322 P.3d 1163 ("[W]e look to the plain meaning of the statute first and go no further unless it is ambiguous." (citation omitted)).

         ¶ 20 The mere fact that both sides to a case may offer a conceivable construction of the statutory language is not enough to create an ambiguity. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465. This is because "the statutory text may not be 'plain' when read in isolation, but may become so in light of its linguistic, structural, and statutory context." Id. Put another way, "[t]he fact that the statutory language may be susceptible of multiple meanings does not render it ambiguous; 'all but one of the meanings is ordinarily eliminated by context.'" Id. ¶ 13 (quoting Deal v. United States, 508 U.S. 129, 131-32 (1993)).

         ¶ 21 As Olsen instructs, we look to multiple contexts-"linguistic, structural, and statutory"-in interpreting the meaning of statutory text. Id. ¶ 9. In looking to the text's structural context, we are guided by the notion that "terms of a statute are to be interpreted as a comprehensive whole and not in a piecemeal fashion." Estate of Berkemeir ex rel. Nielsen v. Hartford Ins. Co. of Midwest, 2004 UT 104, ¶ 10, 106 P.3d 700 (citation omitted). A proposed interpretation that is plausible in isolation may thus "lose[] its persuasive effect when we [seek to] harmonize [it] with the rest of" the statutory scheme. Olsen, 2011 UT 10, ¶ 12 n.5 (citation omitted); see also State in Interest of J.M.S., 2011 UT 75, ¶ 22, 280 P.3d 410 ("In essence, statute[s] should be construed . . . so that no part [or provision] will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another." (quoting State v. Jeffries, 2009 UT 57, ¶ 9, 217 P.3d 265) (alterations in original)).

         ¶ 22 With these principles in mind, we turn to the case before us. In two cases that we are currently reviewing-this one and Quast v. Labor Commission, 2015 UT App 267, 362 P.3d 292-the Utah Court of Appeals held that employees can show a "limit" on their ability to do basic work activities by adducing proof of any limitation on their ability to work, no matter how slight. On the court of appeals' reading of this provision, even employees who are "capable of performing basic work activities" may establish a claim for permanent total disability benefits if they can show "some limitation" on the performance of those activities. Oliver v. Labor Comm'n, 2015 UT App 225, ¶ 13, 359 P.3d 684. Because this interpretation is at odds with the plain meaning of the basic work activities provision, we reverse the court of appeals.

         A. The Court of Appeals Erred in Its Interpretation of the Basic Work Activities Provision

         ¶ 23 To explain why the court of appeals erred in its interpretation of the basic work activities provision, we must first briefly review our decision in Provo City v. Utah Labor Commission, 2015 UT 32, 345 P.3d 1242-the most recent case in which we interpreted the basic work activities provision. In Provo City, we were called upon to interpret the meaning of "basic work activities." We held that "basic work activities" are not just any activities that are typically performed in the workplace. Instead, they are those activities that are essential to "a broad spectrum of jobs available." Id. ¶ 28. They are, in other words, those capabilities that enable an employee "to perform most jobs, including more sedentary lines of work." Id. ¶ 29.

         ¶ 24 Viewed in isolation, the term "limit" has a variety of different possible meanings, but we do not define the term in isolation. Instead, we consider its meaning in light of the statute as a whole and Provo City's construction of "basic work activities." See Olsen, 2011 UT 10, ¶ 9 (noting that statutes must be read in light of their linguistic and legal context).[4] Read in this context, it is plain to us that whether an employee is "limited" in his ability to perform basic work activities depends on whether, notwithstanding his impairments, he is meaningfully able to perform the core tasks that are basic prerequisites to employment. As the Provo City opinion itself recognized in concluding that an employee's nontrivial neck injuries were not, by themselves, enough to constitute a "limit" on his ability to do basic work activities, not just any limit on the ability to do typical workplace activities will do. Instead, Provo City teaches that proof of permanent total disability requires proof of a limitation that strikes at the heart of those "abilities and aptitudes necessary to do most jobs." Provo City, 2015 UT 32, ¶¶ 28-29. To the extent that a limitation does not significantly hinder an employee in his ability to meaningfully participate in the workforce, it may be a limit on typical workplace activities, but it is not a limit on basic work activities as Provo City defines them. The court of appeals' contrary conclusion appears to be based on reading the word "limit" in isolation, without considering its linguistic context.[5]

          ¶ 25 The court of appeals also failed to consider the structural context of the basic work activities provision. See Estate of Berkemeir ex rel. Nielsen, 2004 UT 104, ¶ 10 ("[T]erms of a statute are to be interpreted as a comprehensive whole and not in a piecemeal fashion." (citation omitted)). Specifically, it disregarded the maxim that statutes "should be construed . . . so that no part [or provision] will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another." State in Interest of J.M.S., 2011 UT 75, ¶ 22 (alterations in original) (citation omitted).

         ¶ 26 As we have explained, the basic work activities provision appears alongside two other provisions: (1) Utah Code section 34A-2-413(1)(c)(iii), which requires an employee to prove that his or her impairment "prevent[s] the employee from performing the essential functions of the work activities for which the employee has been qualified until the time of the industrial accident"; and (2) Utah Code section 34A-2-413(1)(c)(iv), which requires an employee to prove that he or she "cannot perform other work reasonably available." Each of these provisions can be met only if an employee suffers from some limitation on the ability to do some common workplace activity. But, if the court of appeals' interpretation were correct, this would mean that virtually any time an employee established either the "essential functions" element or the "other work reasonably available" element, that employee would automatically establish that he or she had a limit on the ability to do basic work activities. It undermines the statutory scheme to interpret the basic work activities provision such that it adds nothing to the permanent total disability analysis.

         ¶ 27 Finally-although we have no need to recur to secondary canons of construction when the meaning of a statute is plain and unambiguous-we note that even if the basic work activities provision were ambiguous, the "absurd consequences" canon would still argue in favor of the interpretation we adopt today. The absurd consequences canon instructs that when a statute is ambiguous, we "resolve[] [that] ambiguity by choosing the reading that avoids" absurd consequences. Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000 (internal quotation marks omitted). If proof of any limit, no matter how slight, were enough for employees to establish that they are limited in their ability to do basic work activities, then it is conceivable that a person could prove a permanent total disability based on a slight limp, the occasional headache, or some other minimal physical or mental limitation. While other elements of the permanent total disability statute might weed these claims out, as the concurrence speculates, this would ultimately depend on the details of the case before the Labor Commission. See infra ¶¶ 96-98. We cannot accept a reading of the statute that opens the door to these consequences.[6]

         ¶ 28 Given our interpretation of the basic work activities provision, we conclude that the Labor Commission correctly interpreted the basic work activities provision in denying Mr. Oliver's application for permanent total disability benefits. Indeed, we understand the interpretation of the basic work activities provision that we articulate here to be in keeping with the Labor Commission's long-standing test for whether an applicant for permanent total disability benefits has proven that he or she is limited in the ability to do basic work activities. This test looks to whether the impairment meaningfully inhibits the employee from exercising a common core of capabilities "generally required in a wide variety of employment settings" that include the ability "to report for work on a regular basis and remain at work throughout the day, as well as a reasonable degree of flexibility, strength, endurance, mental capacity and ability to communicate." Anderson v. Dee Warner Constr., 2007 UT Wrk. Comp. LEXIS 41 at *9. Nothing in this opinion should be taken as a repudiation of this doctrinal implementation of the basic work activities provision.

         ¶ 29 The Labor Commission denied Mr. Oliver's application after concluding that his work restrictions-especially the requirements that he take occasional unscheduled breaks and that he may be absent from work occasionally-did not "present a reasonable limitation on Mr. Oliver's ability to do basic work activities." The requirement that a limitation be "reasonable"-in the sense that the limitation would make it unreasonable for an employer to ask an employee to perform the tasks that are basic prerequisites of successfully working a broad swath of jobs-follows from the meaning of "basic work activities." If a limit does not make it unreasonable to ask an employee to do the core tasks that are essential to a broad swath of different jobs, it is not a limit on basic work activities at all. In our view, the Labor Commission's conclusion that Mr. Oliver was not "reasonably limit[ed]" in his ability to do basic work activities amounted to a determination that he was not rendered practically incapable of performing the core tasks that are essential to a broad swath of different jobs.

         ¶ 30 In sum, we hold that only those impairments that strike at the heart of the abilities and aptitudes that are necessary to most jobs-i.e., only those impairments that meaningfully inhibit an employee from performing the core tasks of a wide swath of jobs to such an extent that it would be unreasonable for an employer to ask the employee to perform those tasks-can be said to limit an employee's ability to do basic work activities. We believe that the Labor Commission was applying this interpretation when it focused on the question whether Mr. Oliver suffered from "reasonable limitations" in concluding that he had failed to prove that his impairments limited his ability to do basic work activities, and accordingly we find no error in the Labor Commission's construction of the permanent total disability statute.

         B. The Permanent Total Disability Statute Should Not Be Interpreted in Lockstep with Federal Disability Law

         ¶ 31 In contrast to the analysis above, the concurring opinion argues that we should read the basic work activities provision in lockstep with an element for establishing disability that has been promulgated in a federal regulation under the Social Security Act. As the concurrence puts it:

Under Utah law the worker is required to show that he 'has an impairment or combination of impairments that limit the employee's ability to do basic work activities.' Utah Code § 34A-2-413(1)(c)(ii). This provision has an obvious counterpart in federal disability law. The parallel element under the Social Security Act requires proof of an impairment that 'significantly limit[s]' the worker's 'physical or mental ability to do basic work activities.' 20 C.F.R. § 404.1522(a).

Infra ¶ 75. Thus, in the concurrence's view, the term "limit" in the permanent total disability statute is a "legal term[] of art that [has been] transplanted from federal disability law in this case." Infra ¶ 88.

         ¶ 32 On the other hand, the concurrence acknowledges that federal law "requires a finding of a 'significant limit' on basic work activities, while our Utah workers' compensation standard speaks only of a 'limit.'" Infra ¶ 91 (quoting supra ΒΆ 27 n.6). But it says that this distinction cannot support our test for whether an impairment limits a worker's ability to perform basic work activities. Instead, keying into the fact that federal courts have largely read the term "significant" out of federal disability law, the concurrence concludes that "the inference to be drawn" from the fact that "[f]ederal law speaks in terms of a 'significant limit' and our statute is phrased in terms of only a 'limit'" is that "the Utah legislature deliberately omitted the term 'significant' in order to align its standard more closely with the standard employed ...


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